A fresh look at soft law

Abstract

International agreements not concluded as treaties and therefore not covered by the Vienna Convention on the Law of Treaties play an important role in international relations. Often states prefer non-treaty obligations as a simpler and more flexible foundation for their future relations. The difference lies mainly in the parties' wish to model their relationship in a way that excludes the application of treaty or customary law on the consequences of a breach of obligations. This restriction does not justify discarding such agreements as being of a 'political' or 'moral' nature only. It would appear more appropriate to consider the extent to which the parties chose to bind themselves and what legal consequences they wanted to attach to their agreement, even though non-treaty agreements are not a source of law in the sense of Article 38 para. 1 of the Statue of the International Court of Justice. The relationship may best be described as a self-contained regime whose characteristics depend on the parties' intentions in the specific case. The introduction of some of the rules of treaty law and general principles of law into that regime may be appropriate. Considerations of good faith may also help to supplement the parties' agreement.

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